Com. v. Anderson

• Decision Date: 05 June 1972
• Parties: COMMONWEALTH v. Nathan ANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 219

284 N.E.2d 219

362 Mass. 74

COMMONWEALTH v. Nathan ANDERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1972.

Decided June 5, 1972.

Thomas G. Shapiro, Boston, for defendant.

Alfred E. Saggese, Jr., Legal Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPIEGEL, BRAUCHER and HENNESSEY, JJ.

TAURO, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from convictions on indictments charging him with unlawful possession with intent to sell a narcotic drug, cocaine, and with unlawful possession with intent to sell a narcotic drug, cannabis (marihuana). G.L. c. 94, §§ 197, 217B, both as amended. The defendant argues that the trial judge erred in admitting in evidence certain property seized and certain statements made by the defendant as a result of an alleged illegal search and seizure. Specifically, the defendant urges that the affidavit in support of the search warrant did not contain facts, information, and circumstances sufficient to establish grounds for the issuance of the warrant and further that it did not establish probable cause for the date that the warrant was applied for and issued. The pertinent portions of the affidavit are set forth in the margin. ¹

In determining the sufficiency of the affidavit, we are guided by the often quoted language in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, and United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 2079, 29 L.Ed.2d 723: '(A)ffidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.' The affidavit is based in part on hearsay information; therefore, we must first determine its adequacy under the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. ² If the informant's tip is inadequate under the Aguilar case, other allegations which corroborate the informant's tip are then to be considered. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637. See United States ex rel. Kislin v. New Jersey, 429 F.2d 950, 952 (3rd Cir.); United States v. Fuller, 441 F.2d 755, 759 (4th Cir.).

The informant's reliability was established by setting forth previous examples of his assistance in apprehending drug offenders. See United States v. Dunnings, 425 F.2d 836, 839 (2d Cir.), cert. den. sub nom. Dunnings v. United States, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412; United States v. Shipstead, 433 F.2d 368, 372 (9th Cir.); United States v. Becker, 334 F.Supp. 546, 550 (S.D.N.Y.). Cf. Von Utter v. Tulloch, 426 F.2d 1, 3 (1st Cir.), cert. den. sub nom. Tulloch v. Von Utter, 400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55. The tip by itself does not contain sufficient information of the 'underlying circumstances' required to support the informant's conclusion that the defendant was selling narcotic drugs at a particular time. Although it does contain an averment that the defendant offered to sell some heroin to the informant, it fails to specify the time and location where the offer occurred. See Rosencranz v. United States, 356 F.2d 310, 316--317 (1st Cir.). It does not follow, however, that the search warrant was issued without probable cause. See Commonwealth v. Moran, 353 Mass. 166, 171, 228 N.E.2d 827.

Other allegations in the affidavit provided a substantial basis for crediting the informer's tip. The tip was corroborated 'through other sources of information . . . (thus reducing) the chances of a reckless or prevaricating tale . . ..' United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723, quoting from Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697. See United States ex rel. Kislin v. New Jersey, 429 F.2d 950, 953--955 (3rd Cir.); United States v. Singleton, 439 F.2d 381, 384--385 (3rd Cir.). There was a police surveillance of the premises during which time known drug users were observed entering and leaving the defendant's apartment. A magistrate is permitted to rely on a policeman's knowledge of a suspect's reputation, United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. 2075, and we therefore perceive no reason why reliance cannot be placed on a policeman's knowledge of the reputations as drug users of persons frequenting the defendant's apartment in assessing the reliability of the informant's tip. In addition, one officer overheard an argument outside the defendant's apartment relative to the quality of cocaine that was sold.

Reasonable inferences may be drawn by the magistrate from all the information submitted in the affidavit in assessing its sufficiency. Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir.). See Commonwealth v. Brown, 354 Mass. 337, 345, 237 N.E.2d 53. The affidavit was capable of the legitimate inference that there was only one third floor apartment in the building. The defendant's argument that there was no probable cause existing on the date of the issuance of the warrant is not persuasive. The affidavit stated that the surveillance occurred 'within the past twenty-five days,' and this could well include observations up to the date of the affidavit. See United States v. Harris, supra, 403 U.S. at...